The President and Congress would nominate and confirm one Supreme Court Justice very two years, and the quorum for deciding cases would consist of the nine Justices most Junior in service. The more senior Justices will retain their commissions and life tenure. But they will hear cases with the full Court only when one of the junior Justices is recused or otherwise unable to perform his or her duties. Senior Justices can still consider petitions for certiorari (discretionary appeals), serve on other federal appellate courts, and handle matters that regularly come before individual Justices. But their caseload will be concentrated in their first eighteen years of service.

As a result, Supreme Court Justices would retain their lifetime tenure, but that tenure would be highly tilted towards their first 18 years. After 18 years, the Justice would “graduate” to emeritus status, filling the court with a new appointee every two years (the non-election year). This seems preferable to the term-limits proposals of other court-watchers, but still forces senior Justices to move aside after too much time has passed. Plus, it retains the bonus of being able to fill the slots of unhealthy/suddenly-dead Justices, unlike the rushed system we have today.

Some of the results that Balkin comes up with, however, are rather unnerving… Balkin comes up with an alternate history from 1951 to present, and the results are weird but plausible. For example, a Reagan appointee-dominated court (4!) overturns Roe v. Wade sometime in the 1990s, before Chief Justice Ruth Bader Ginsburg (really) takes over in 1993. Plus, a court with 4 Clinton appointees probably ignores Bush v. Gore and lets the recount continue in full, after which President Gore gets his two picks.

The thought experiment points to an unfortunate truth of most structural changes that we propose as solutions to existing problems — we never know what their upshot will be in the future. I think we need at least incremental structural changes to the way we run government. Today provided some glaring examples of poorly organized systems in government that hamper the actual business of the people and lead to general dysfunction. Yet, changing the system can lead to further dysfunction. After all, the amendment system in parliamentary procedure was designed to prevent one party from bum-rushing the other, while California’s referendum system, which has led to its budget crisis and deepened its economic pain, was designed to let the people have a voice in representative government that ignored their pleas.

We never know what will happen, but part of progressivism assumes that we are improving our systems of thought and that we can improve on the past. I believe this is possible, and Balkin’s alternate history doesn’t change that. We should, however, be well aware of the forces with which we dabble. It’s easy to propose something on your blog; it’s hard to make it work in the long term.